Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

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Date: 27 November 1747

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A father disponed his estate to his second son, (his eldest having been engaged in the Rebellion 1715,) with the burdens of provisions to his younger children, and with a power of redemption for a rose-noble reserved to himself, or to any body he should name. Accordingly he named his eldest son, by a deed under his hand, who came home at the end of the three years, got the estate from his second brother, (the father being then dead,) and possessed it all the days of his life, upon the title of apparency. After his death the son of the third brother took up the estate as heir to his grandfather, and the question was, Whether he was liable for the provisions of the younger children.

The Lords found that these provisions were a burden upon the land, which accompanied it even after the redemption by the eldest son, and that, though he had chosen to make up his titles as heir, yet he would nevertheless have been liable for these provisions, because the title, si quis omissa causa testamenti, &c., takes place in our law; and, because these provisions affected the land, they found it was not sufficient that the younger children had got the value of their provisions out of the executry of their uncles, the first and second son, for they thought the provisions were a debt upon the estate and the possessor of it.